IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100022757 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his bad conduct discharge (BCD) to an honorable discharge (HD).  

2.  He states, in effect, he believes the BCD was unwarranted because it was his first offense, and he was young and homesick. 

3.  He provides:

* a DA Form 2-1 (Personnel Qualification Record - Part II)
* special court-martial orders
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored personal statement
* three character reference letters

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a 


substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  His military personnel record shows he was born on 25 November 1966.  He was nearly 20 years of age at the time he enlisted in the Regular Army on 
20 June 1986.  He served in military occupational specialty 88M (Motor Transport Operator) and the highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  Headquarters, 1st Armored Division, Special Court-Martial (SPCM) Order Number 24, dated 21 November 1988, shows that on 16 September 1988 he entered a plea of guilty to one charge and two specifications of violating Article 128 of the Uniform Code of Military Justice for striking a Soldier on the head with a beer mug, and for slapping another Soldier in the face with an open hand.

4.  On 16 September 1988, he was sentenced to a BCD, 2 months confinement, forfeiture of pay for 2 months, and reduction to private (PV1)/E-1.

5.  On 21 November 1988, the SPCM convening authority approved the sentence as adjudged on 16 September 1988.  All portions were ordered executed except for the BCD.

6.  Item 21 (Lost Time) of his DA Form 2-1 shows he was placed in military confinement from 16 September to 3 November 1988.  

7.  His record contains a DA Form 4187 (Personnel Action), which shows he was released from military confinement and he was placed in a present for duty status on 4 November 1988.

8.  A DA Form 31 (Request and Authority for Leave) shows he was placed in an excess leave status from 20 December 1988 to an indefinite period, pending the appellate review of his court-martial.

9.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, SPCM Order
Number 107, dated 21 June 1989, confirmed his BCD on 10 February 1989.  The U.S. Army Court of Military Review denied his petition for review on 23 May 1989.


10.  On 26 July 1989, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a court-martial with a BCD.  He had completed 2 years, 11 months, and 19 days of creditable active service.

11.  He provided a self-authored statement in which he apologizes for his adolescent behavior on 9 July 1988, while in Ansbach, Germany.  He contends he displayed reckless and unsound behavior, which was unbecoming a model Soldier during peacetime.

12.  He also provided three character reference letters that state since the time of his discharge, he has become a responsible husband, father, Christian, and employee.  All three letters petition for an upgrade of his BCD.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to 


be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered; however, in the absence of evidence of error or injustice, it does not show merit.

2.  He was nearly 20 years of age at the time of his enlistment.  There is no evidence to show he was any less mature than other Soldiers his age.

3.  He was properly discharged pursuant to a sentence by an SPCM conviction with no evidence of any violation of his rights.  His contentions that he was young and homesick relate to evidentiary/mitigating matters which could/should have been finally and conclusively adjudicated in the appellate process.

4.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

5.  His post-service conduct has been noted; however, this alone does not warrant an upgrade of his discharge.  In view of the foregoing, the evidence does not warrant the requested relief.

6.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100022757



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ABCMR Record of Proceedings (cont)                                         AR20100022757



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